Foilsiú
53740 (31 January 2023)
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
The Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme (1) of Compensation for Personal Injuries Criminally Inflicted
Decision of a Three Member Panel
(1) The Scheme in being at the time the application was received by the Tribunal.
Name of applicant: [ ]
Application number: #53740
Date of incident: [ ]
Date of receipt of application: [ ]
Decision outcome: Total Award of €14,066.25 out of which €3,198 is to be paid to [ ], Consulting Actuaries.
[ ] (“the Applicant”) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (“the Scheme”).
The Applicant claims that he was assaulted in the early hours of [ ] at a flat on [ ], when two persons unknown to him entered onto the property and attacked him with [ ]. The Gardaí attended at the scene after the attack and the Applicant was admitted to the [ ] Hospital, where he remained until [ ] for treatment for his injuries, including a fractured leg and arm.
In a Garda Report, received by the Tribunal on [ ], the Gardaí confirmed that, despite their investigations, no proceedings were instituted nor envisaged in respect of the incident as they were unable to find any suspects nor a motive for the attack.
The Applicant, through his legal advisors, [ ] Solicitors (now practising with [ ] Solicitors), submitted a claim to the Tribunal on [ ] seeking out-of-pocket expenses including medical and travel expenses, as well as a claim for loss of earnings.
Whilst no proceedings were instituted by the Gardaí despite their investigations, and despite no apparent motive for the attack upon the Applicant by persons unknown to him, the Tribunal is willing to accept that the Applicant was the victim of a crime of violence on [ ] and suffered personal injuries directly attributable to that crime of violence (satisfying paragraph 1 of the Scheme). The said assault was reported to the Gardaí following the attack (satisfying paragraph 23 of the Scheme) and the Applicant submitted his application to the Tribunal within the three-month time period as prescribed under the Scheme (satisfying paragraph 21 of the Scheme). By reason of the foregoing, this application is deemed eligible for further consideration for compensation.
In the Applicant’s discharge summary from the [ ] Hospital, dated [ ], it confirms that the Applicant presented at the [ ] Hospital with a fracture to his left tibia and right ulnar and a fracture of the acromion process of his left scapula with AC joint subluxation, as well as facial lacerations. The Applicant underwent surgery for his arm and leg under the medical/surgical team of Mr [ ], Consultant Orthopaedic Surgeon, whilst his left shoulder injury was treated conservatively, by means of a sling. On the Applicant’s discharge summary, in handwriting, it states “Note: Unlikely to be able to work for at least 3 months.”
Whilst no information has been put before the Tribunal by the Applicant in respect of follow up review or treatment, such as physiotherapy, to aid his recovery, Mr [ ], Consultant Orthopaedic Surgeon, provided a Medical Legal Report (2) following examination of the Applicant on [ ], over [ ] years after the incident/injuries sustained.
(2) Mr [ ] Medical-Legal Report was paid for by the Tribunal at the request of the Applicant’s legal advisors.
Upon examination of the Applicant, Mr [ ] confirmed that the Applicant had a full range of motion of his left knee, that his surgical scars were well healed, and that he had no significant patellofemoral provocation signs. Mr [ ] confirmed that the Applicant had a full range of motion of his elbow, forearm and wrist. The Applicant, noted Mr [ ], had undergone a series of x-rays on admission to the [ ] on [ ], and upon discharge, further x-rays were undertaken when the Applicant was reviewed on [ ] and [ ], and that these were all satisfactory.
Mr [ ] also noted that a CT brain scan had been performed on the Applicant on [ ], almost three years after the incident, which was normal, and that a CT of his facial bone showed non-displaced vertical fracture through the temporal bone, but that this that was quite distant from the Applicant’s index incident and Mr [ ] was uncertain what the indication for this x ray was.
Objectively, noted Mr [ ], the Applicant “has made a complete recovery in terms of fracture union and joint function in his left lower limb, right forearm and left shoulder”. Mr [ ] noted that the Applicant himself “still complains of symptoms in all these regions.”. The Applicant, reported Mr [ ], presented with a slightly atypical limp.
No further medical evidence has been submitted by the Applicant to the Tribunal in respect of the injuries sustained on [ ], nor has any medical evidence been furnished in respect of any injuries that he may have sustained in the years thereafter.
The Applicant has made a claim for medical expenses. These include the statutory hospital charge of €750, which has been vouched. The Applicant has also provided two receipts for €50 each from Dr [ ] practising at [ ], dated [ ] and [ ], and, a prescription receipt, dated [ ], in the sum of €8.95 (for Oxynorm 5mg). The Applicant has also submitted a considerable number of Leap Card top up receipts dating from [ ] to [ ].
The Applicant is also making a claim for loss of earnings. An actuarial report, dated [ ], from [ ], has been furnished to the Tribunal (3) within which calculations have been made for the Applicant’s loss of earnings, past and into the future up to retirement at 66, or alternatively, 70 years of age, on the assumption that the Applicant would not return to work.
(3) For which the Tribunal has agreed to underwrite the cost.
The Applicant’s claim is that in the eight weeks prior to the incident, he had commenced working as a [ ] with [ ]. The Applicant’s P60 for [ ] indicates that he had been working for [ ], a [ ], during [ ], where he earned approximately €340.23 per week (approximately €17,692.10 net per annum). The Tribunal has not been provided with details of the Applicant’s employment history in the eight months leading up up to when he commenced his work with [ ], i.e., from [ ] to [ ].
Three payslips, together with a print-out of the Applicant’s pay record from [ ] for the said eight weeks wages prior to the incident, have been submitted to the Tribunal in aid of his application. The print-out indicates that the Applicant’s total earnings over these eight weeks came to €4,608.47, giving the Applicant an average weekly wage of €576.05 for the eight weeks preceding the injuries sustained.
Upon discharge from the [ ] hospital on [ ], the Applicant applied for and was granted Basic Supplement Welfare (from [ ]) followed by Illness Benefit. By [ ], according to the Department of Social Protection, the Applicant’s claim was ongoing, and he was in receipt of €193 per week. The Applicant applied for Disability Allowance on [ ] but was refused on the grounds that he did not satisfy the medical conditions of the Scheme. The Applicant appealed that decision and was granted Disability Allowance on [ ].
Thereafter, on [ ], the Department of Social Protection informed the Applicant that following assessment, his Disability Allowance was to be reduced, on the basis that he was in receipt of a [ ] (Incapacity) Pension in the sum of €116.96 weekly. Accordingly, the Applicant’s allowance from the Department of Social Protection was reduced to €119.50, comprised of the following: Weekly personal rate: €88; Increase for Living Alone; €9; Free Fuel Allowance €22.50.
No information has been put before the Tribunal as to when this [ ] Incapacity Pension was sought by the Applicant, for how long he had been in receipt of same and/or the grounds upon which it was granted to the Applicant.
Like all applicants seeking compensation under the Scheme, it is for the Applicant to establish his case (pursuant to paragraph 26 of the Scheme). In the instant case, the Applicant’s claim for compensation must be based on the injuries he sustained, which are directly attributable to the crime of violence complained of on [ ].
The Applicant’s claim would appear to be based on the fact that disability allowance was granted to him on [ ], coupled with a reference in the actuarial report (at 4) “We are asked to value Mr [ ] future loss of earnings on the assumption that he will not work again. In this regard his GP has stated that the applicant “… is not fit for work activity indefinitely due to his mental and physical problems caused from the multiple trauma to his head, body and limbs that he suffered.”
Beyond the discharge summary of the [ ] Hospital of [ ], which referenced, in terms of months, the envisaged recovery time for the injuries the Applicant sustained on the [ ], and the objective medical findings of Mr [ ], Consultant Orthopaedic Surgeon, following his examination of the Applicant in [ ], which have been clearly set out in Mr [ ] Report, and confirm the Applicant’s full recovery from those injuries, no further medical evidence has been provided by the Applicant to the Tribunal to either substantiate his claims of continuing injuries and/or to contradict the findings of Mr [ ], in respect of the injuries he sustained on [ ].
The Tribunal is of the view that it is unable to accept the premise underpinning the actuarial report, to the effect that the Applicant was permanently unable to return to work as a result of the subject injury. The Tribunal considers that, at best, it can place very limited weight on the actuarial report in making its determination on the Applicant’s loss of earnings claim. Furthermore, the Tribunal notes that whilst the Applicant states on his application form that his date of birth is [ ] (i.e., [ ] years of age at the time of the incident) and his loss of earnings have been calculated on that basis in the actuarial report, the Department of Social Protection record the Applicant’s date of birth as [ ] (i.e., being [ ] at the time of the incident).
The Tribunal accepts however that the Applicant suffered the injuries as stated on his medical records from the [ ] arising from the incident on [ ] and relies upon the conclusions of the medical opinion as set out in the Applicant’s discharge summary of the [ ] Hospital of [ ]. Therein it states that the Applicant would be “at least” three months out of work on foot of the injuries he sustained.
The Tribunal is prepared to accept that the Applicant could have been out of work for longer than that, and on that basis is prepared to accede to the possibility that the Applicant may well have needed a further three months, that is, six months in total, to recover from the injuries he sustained in the incident. On that basis, the Tribunal is willing to award the Applicant a loss of earnings for 26 weeks following the incident, based on the average weekly pay he received from [ ] in the weeks prior to the incident. As required under the terms of the Scheme, the Tribunal must take into account the compensation the Applicant has already received by way of social welfare payments during those 26 weeks.
To that end, the Tribunal calculates and thereby awards the Applicant the following:
Loss of Earnings: 26 weeks x €576.05 per week, less €193 in welfare payments per week:
€9,959.30
Medical Expenses: The Tribunal is prepared to allow for all vouched medical expenses as set out above: €858.95
Travel Expenses: In circumstances where no attendances for medical appointments have been confirmed or clarified above, bar two visits to his GP, the Tribunal is prepared to compensate the Applicant the total sum of €50 for travel expenses incurred arising out of the injuries sustained.
Reports: The Tribunal has already discharged the cost of the Medical-Legal report of Mr [ ]. The Tribunal agreed to underwrite the cost of the Actuarial Report from [ ], notwithstanding that it does not rely upon its findings in the circumstances set out above. An invoice in the sum of €3,198 for the said Actuarial Report has been received by the Tribunal.
Loss of earnings (26 weeks): €9,959.30
Medical expenses (vouched) €858.95
Travel expenses €50
To the Applicant: €10,868.25
To [ ]: €3,198
Total award: €14,066.25
Nora Pat Stewart BL, Tribunal Member
Conor Heaney, Solicitor, Chair of Tribunal
Elizabeth Davey BL, Tribunal Member
Dated the 31st day of January 2023